U.S.

Department of Justice

Executive Office for Immigration Re 1ew

Board ofImmigration Appeals

Office ofthe Clerk
5/07 leesburg Pike. Suire 2000
Falls Church. Virginia 220-1 I

OHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name:M_B_J

Date of this notice: 10/25/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holiona, Hope Malia

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: J-R-M-B-, AXX XXX 175 (BIA Oct. 25, 2016)

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Smallwood, Evelyn Rose Griggs

Velasquez and Associates
107 N. Church St
Durham, NC 27701

U.S. Department of Justice

Decision of the Board oflmmigr tion Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 175 - Charlotte, NC

Date:

IN REMOVAL PROCEEDINGS
APPEAL

ON BEHALF OF RESPONDENT:

ON BEHALF OF DHS:

Evelyn G. Smallwood, Esquire

Scott D. Criss
Assistant ChiefCounsel

APPLICATION: Cancellation ofremoval

The respondent, a native and citizen of Guatemala, has appealed from the Immigration
Judge's written decision dated November 20, 2014, denying his application for canbellation of
removal under section 240A(b)(l) of the Immigration and Nationality Act 8 U.S.C.
1229b(b)(l). The Department of Homeland Security has filed a motion fo summary
affirmance, which is denied. The appeal will be dismissed.
We review the findings of fact made by the Immigration Judge under a "clearly rroneous"
standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law, discretion, an judgment
l
under a de novo standard. 8 C.F.R. 1003.1(d)(3)(ii).
The Immigration Judge denied the respondent's application for cancellation 9f removal,
finding that the respondent did not show the requisite "good moral character" and tha} he did not
show that his removal would result in "exceptional and extremely unusual hardsnip" to his
qualifying relatives, his two United States citizen children. The respondent challe ges these
determinations on appeal.

As to the issue ofexceptional and extremely unusual hardship, the respondent arg\les that the
Immigration Judge did not consider all of the evidence presented, based on the *1rugration
Judge's comments at the master hearing in February 2014 and at the outset of th inividual
hearing in May 2014 (Resp. App. Brief, at 19; Tr. at 8, 14-15). However, the Iljll.Il1igration
Judge's written decision indicates that he read and considered the medical documentation in the
1
record as well as the doctor's letter describing his daughter as suffering from mild ecz1 ma
(I.J. at
10).

The respondent next argues that the Immigration Judge made assumptions, nof based on
evidence in the record, regarding his children's receipt of public benefits ifthe respopdent were
removed (Resp. App. Brief, at 20-21; I.J. at 10-11). The respondent also argues that the
Immigration Judge considered the hardship factors only individually and not curnulatie y (Resp.
Cite as: J-R-M-B-, AXX XXX 175 (BIA Oct. 25, 2016)

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In re: .rallB

OCT 2 5 20 6

175

Upon de novo review, we find that the respondent does not qualify for cancellation of
removal because he did not show that his removal would result in exceptional anti extremely
unusual hardship to his qualifying relatives, for the reasons articulated by the Immigfation Judge
(except for the consideration as previously noted). While the respondent's removal would result
in hardship to his family members, the level of hardship shown falls short of the ' exceptional
and extremely unusual hardship" standard set forth in section 240A(b)(1)(D) of the ct. Matter
of Monreal, 23 I&N Dec. 56, 59-62 (BIA 2001) (finding that, by requiring exceptional and
extremely unusual hardship, Congress intended to limit cancellation to truly excdptional and
1
compelling cases, where the qualifying relatives would suffer hardship that is ubstantially
beyond that which would ordinarily be expected to result from the alien's remov l); see also
Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); compare with Matter of Reci as, 23 I&N
Dec. 467 (BIA 2002).

Accordingly, we uphold the Immigration Judge's decision denying the r spondent's

application for cancellation of removal,and we will dismiss the respondent's appeal. In light of
our decision, we need not address the respondent's arguments regarding the issue of good moral
character. 1
ORDER: The appeal is dismissed.
-

FOR THE BOARD

I The respondent argues that the Immigration Judge violated his due process rights br declining
to admit and consider certain evidence he offered regarding a domestic violence prottion order
and incidence, while admitting evidence offered by the DHS on the same matter (fesp. App.
Brief, at 12-17; Exhs. 4-5). We find that the interest of the case would have been bes I served by
admitting both parties' evidence on the same issue and giving each document the wt=ight that is
due. Inasmuch as this matter relates to the good moral character issue, however, s matter
would not affect the outcome of our decision based on exceptional and extreme y unusual
hardship. Therefore, we do not find that a remand is warranted on this issue. Tiscar no-Garcia
v. Holder, 780 F.3d 205, 211 (4th Cir. 20 I 5) (holding that, to succeed on a due proce s claim in
diced the
immigration proceedings, the alien must establish inter alia that the defect
outcome of the case); Anim v. Mukasey, 535 F.3d 243,256 (4th Cir. 2008).
2

Cite as: J-R-M-B-, AXX XXX 175 (BIA Oct. 25, 2016)

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igration
App. Brief, at 21-22). However,the Immigration Judge's decision indicates that the
Judge considered the evidence of hardship both individually and cumulatively (I.J. at 11). We
agree with the respondent that the Immigration Judge's consideration of his childre 's receipt of
public benefits is not supported by the record, and we will disregard any such c! nsideration.
Nevertheless, when all hardship factors shown in evidence in the record are cons ered in the
aggregate, we conclude that the respondent did not establish the requisite har, ship to his
qualifying family members.

Date:
In the Matter of:

RESPONDENT

)
)
)
)

l(. .r
IN REMOVAL PROCEEDINGS

CHARGE:

212(a)(6)(A)(i), alien present in the United States without having

been admitted or paroled

APPLICATION:

Cancellation of removal for non .. lawful permanent residents

ON BEHALF OF RESPONDENT: Evelyn R. G. Smallwood, Esq.

107 North Church Street, Suite 200
Durham, NC 27701
ON BEHALF OF DHS: Scott Chris, Assistant Chief Counsel
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 39-year-old native and citizen of Guatemala.
According to his application, he entered the United States in May of 2000. According to
his in court testimony, it was in the year 2000, although he was not sure of the month.
At the time of his entry, the respondent was older than 25. He came,,._ to the United
States for economic reasons and to make a better life for his family.
The respondent is married to a native and citizen of Guatemala. Her
name is Selsa Martin. They married in Guatemala at some date before 2000; the
respondent was unclear about the date of their actual marriage. According to the

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA

respondent, his wife came to the United States with him in 2000.
Her name is Lady. She's aged 1 5. She's currently in the United States. She also came
with the respondent and her mother in 2000. She has a DACA approved application or
a pending one at this point.
After arriving in the United States, the respondent and Ms. Martin had two
children. The oldest one is Estella, aged 1 3 , and in the seventh grade. The second
child is Gladys, aged 3.
The respondent works for a sub.contractor who does housekeeping at a
hotel. He's been working there since 2001 . He works there full time; he earns $800
every two weeks . He works six days per week. The respondent bought a fraudulent
Social Security card which he used to obtain this employment in 2001 . He is continuing
to use that Social Security number at this employment.
The respo ndent's wife does not currently work. She has never worked
here in the United States.
In terms of family here in the United States, the respondent has one
brother and one sister both of them live in the Washington. D.C. area. Neither one of
them have legal status. His wife does not have family here in the United States.
In terms of family in Guatemala. the respondent has his parents , two
brothers, and one sister. They live in an isolated rural area in Guatemala. According to
the respondent, it is undeveloped, and is an indigenous village. The respondent
communicates with his parents in Guatemala by the use of a cell phone.
The respondent's wife is also from that same area in Guatemala. She has
her parents, three brothers, and four sisters in Guatemala.
The respondent currently rents a home. He pays $540 per month for that
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While the couple were still together in Guatemala, they had a daughter.

home. Additionally, he has utility bills including an electricity bill in the range of $1 1 O to
$ 1 50 per month and the respondent a l so spends about $125 per week in food. The
respondent lives in his home with h is wife and three children.
The respondent owns three automobiles. He estimates the fair market
value of those three cars to be $5,000. He does not have any savings in the bank.
The respondent has criminal history here in the United States. The
respondent was arrested and charged with communicating threats, violating a domestic
violence protective order, assault, inflicting serious injury in June of 20 1 3 . These
charges were recently dismissed.
The respondent testified about this criminal matter in 201 3. He testified
that he was drinking after work and came home drunk. He was not sure how much
alcohol he had consumed . The respondent has very little recollection of this event as
he has alcohol-induced memory loss. The respondent essentially blacked out and does
not recall m uch of anything about what happened other than being taken away in a
police cruiser. The respondent states that his wife called the police and he was
arrested . He spent one month in jail.
The respondent further elaborated that at the time of the arrest in 201 3,
there was a protective order in p lace from an earlier incident. The res p ondent indicated
that at the time the protective order was put in place the cou p le split up for two or three
weeks. Eventually they went to court and they were given permission by the judge to
live together.
The respondent was questioned on cross examination about whether he
had ever used any AKAs. He acknowledged that he used two different names when he
crossed the border and was caught in June of 2000. He indicates that he was caught
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$ 1 25 per month. His water bill is $9,200 every two months. The respondent's gas bill is

two times. Both times he was with his wife and daughter.
respondent stated that the protective order had been in place only one month prior to
his arrest in 201 3 on domestic violence charges. The court knows that to be inaccurate
statement regarding the historical facts which the court will discuss later.
The protective order was actually entered into in January of 201 3. The
respondent explained that he and his wife argued and that she left the home taking the
children and W,e police and that she stayed away for two or three weeks living
in a shelter. The respondent was specifically questioned about the level of violence
during the incident that led to the protective order. He indicated that there was no
physical violence. He reiterated that there was no hitting although he indicated that it
was a verbally violent situation . He confirmed this testimony by telling the court that he

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The respondent was asked to elaborate regarding his arrest. The

was sure that there was no physical violence in the course of the protective order. 11) c. 1b t: NJ:
The respondent was then questioned by the government regarding the
specific facts of the case. He was asked if he recalled being arrested on May 3, 20 1 at
5:00 in the morning. He stated that he had no recollection of that. He was asked
whether he ever had punched his wife. The respondent again stated that he had no
recollection. He confirmed that he believed his two daughters were present during this
incident.
The respondent stated that the charges were dismissed because his wife
did not go to court to press the charges. Once again the respondent reiterated his
testimony that he could not recall asseiulting his wife on the day of the May 201 3 arrest.
The respondent testified that there was no drinking or alcohol involved on

"
,..

the night in January when the protective order was put in place. He testified that there
was just argument with no physical violence.
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The resp ondent submitted a number of letters attestin g to his good moral
and considered. The court would note that the respondent has only filed taxes from
2008 until 201 2. He testified that he filed 201 3 taxes , althou g h they are not in the
record. In the fiscal year of 201 3 , he estimated that his adj usted g ross income was
ap p roximately $ 30 , 000. The respondent explained that he had not filed taxes earlier
than 2008 because he did not have the 1 099 forms to do so.
The respondent was q uestioned about his drinking histo ry. He indicated
that he used to drink on a reg ular basis but since his arrest he has stopped drinkin g . He
stated that he does not believe he's an alcoholic. The resp ondent.., has never taken
any substance abuse classes. The court notes that as p art of the p rotective order he

--

was req uired to do so. See Exhibit 6, Page 5 , Box 14.

The res pondent does not currently have a driver's license. He does have
work authorization which he obtained two weeks ag o. He is in a p osition to obtain a
driver's license. Notwithstandin g the lack of driver's license , the res p ondent drove to
court today . I n Guatemala , the res pondent obtained a sixth g rade ed ucation . The only
em p loyment he ever undertook in Guatemala was working on the family farm. He does
not own any p ro perty in Guatemala.
In his a pplication for cancellation of removal , the respondent indicated that
his wife and two q ual ify in g relatives would remain here in the United States. When he
testified in court , he again reiterated that h is wife and two kids would stay here in the
United States. He went on to exp lain that his wife would have to g et a job in order to
help to try to supp ort them.
The two q ualifying relatives are currently receivin g Medicaid. They also
receive food stam ps in the amount of more than $ 300 per month.
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character, the res p ondent's evidence at Exhibit 2 , Tab C , which the court has read

In terms of the health of the family, the respondent indicates that he is in

only child with any medical issues is Estella. According to the medical doctor's letter at
Exhibit 3, Tab Q, she has a mild case of eczema. The respondent explained that she is
on five prescription medicines and that she has gotten infections from time to time which
were treated by antibiotics.
In terms of any ed ucational concerns, the respondent testified that Estella
is "doing good" in school.
STANDARD OF THE LAW
The respondent bears the burden of proof of persuasion on his
application, see 8 C. F. R. 1 240.S(d). The provisions of the REAL ID Act of 2005 apply
to the respondent!s application as it was filed after May 1 1 , 2005.
To be eligible for cancellation of removal under Section 240A(b)( 1 ) of the
I NA, an applicant must establish: 1 ) they've been physically present in the United States
for a continuous period of not less than 10 years immediately preceding the date of the
application; 2) they've been a person of good moral character"throughout that period of
time; 3) they have not been convicted of an offense under J NA sections 212(a)(2),
237(a)(2} or 237(a)(3); and 4) they're removal would result in exceptional and extremely
unusual hardship to their United States citizen or lawful permanent resident, spouse,
parent, or child.
Additionally an applicant must establish that he warrants cancellation of
removal as a matter of discretion. See I NA 240A(b)(1 ).
Exceptional and extremely unusual hardship is such hardship that are
substantially beyond that which would ordinarily be expected to result for an alien's
removal from the United States but need not show that such hardship would be
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good health as is his wife and the youngest daughter Gladys is also in good health. The

"unconscionable." See Matter of Recinas, 23 l&N Dec. 467 (BIA 2002); Matter of
Factors relating to an applicant himself can only be considered in so far as they may
affect the hardship to a qualifying relative. See Monreal, 23 l&N Dec. at 63-64.
ANALYSIS AND FINDINGS OF THE COURT
The first issue before the court is whether the respondent can establish
the requisite 1 0 years of continuous physical presence prior to the issuance of the
notice to appear. Based on the documentary evidence in the record and the
respondent's testimony, the court is satisfied that the respondent meets this threshold
requirement.
The next issue before the court is whether the respondent can establish
that he is a person of good moral character. The court finds that the respondent is not a
person of good moral character because on the date of his merits hearing, the
respondent gave false testimony to the court for the purposes of obtaining an
immigration benefit that immigration benefit being cancellation of removal from non
lawful permanent residents.
Specifically the respondent was asked by the court whether the incidents
of domestic viol nce which lead to 1h protective order being Issued in February of 201 3
involved any physical violence. The respondent expJained that there was no hitting
{l,lrTlfa\-

invorved, /)llp/J there was simply violence of a verbal nature, The respondent was
unequivocal that there was no physical violence. The court asked the respondent if he
was sure that was the case and the respondent confirmed his testimony saying he was
sure that there was no physical violence, simply a verbal altercation. When the
respondent was under cross examination , the government attorney again asked the
respondent whether the incident that gave rise to the protective order on February 201 3
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Andazola, 23 l&N Dec. 31 9 (BIA 2002); Matter of Monreal, 23 l&N Dec. 56 (BIA 2001 ).

involved any physical violence. The respondent reiterated his previous testimony that
situation as being verba lly violent but not physically violent. Tt,e court finds that the
respondent has lied to the court and gave false testimony to the court based on a
review of the evidence at Exhibit 6.
Exhibit 6 is the protective order that was p ut in place on February 1 3. 201 3.,,
and was good for a period of one year. According to the protective order, the judge
that's on the order made certain findings of fact during the hearing , the plaintiff, the
respondent's wife, and the respondent, the defendant, were both present at the hearing .
And the judge makes findings that on January 23, 201 3 , the defendant intentionally
caused bodily injury to the plaintiff. In other words, that the respondent caused bodily
injury to his wife. The court finds this finding by the judge who issued the protective
order to be a clear contradiction to the respondent's testimony that in fact there was no
physical violence involved and that it was of the verbal nature. The findings of the j udge
are that the respondent intentionally caused bodily injury; bodily injury can only be
described as physical violence. The respondent could not have caused bod ily injury to
his wife only through verbal abuse.
The court finds that the respondent intentionally concealed the true facts
that lead to the issuance of the protective order before the court. The court finds that
the respondent lied about this matter in order to conceal the true facts of what actually
happened . Based on Exhibit 6 , the court finds that the respondent in fact caused
p hysical harm to his wife on January 23, 20 1 3, and that at today's hearing the
respondent lied intentionally about it in order to keep the true facts from the court. He
did this so that he might receive the benefit of cancellation of removal . Accordingly the
court finds that the respondent provided false testimony before the court and is
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there was no physical violence, that it was only a verbal altercation. He described the

therefore barred from establishing good moral character. See INA 1 01 (f)(6).
court has found that the respondent is now statutorily ineligible for the relief of the
cancellation of removal. The respondent has not been convicted of any disqualifying
crimes. The charges on June 201 3 related to domestic violence were ultimately
dismissed and the respondent was not convicted. The circumstances of that arrest are
laid out in the police report in Exhibit 4. The co.u rt finds that the respondent while he
was in a drunken state seriously assaulted his wife and that the assault was of an

aggravated nature. See Exhibit 4. The respondent was not convicted of this thus the
respondent has no disqualifying crimes.
Absent of disqualifying crimes the only remaining issue before the court is
whether the respondent can establish the requisite hardship to his two qualifying
relatives. In this case, that would be Estella, aged 1 3, and Gladys, who's aged 3.
The court finds thatthere would be significant financial hardship to
the two children. According to the respondent, the two children will remain here in the
United States with his domestic partner and will not return to Guatemala with him . The
record reflects that the respondent is the sole bread winner of the home. His wife has
never worked in the United States since her arrival in the year 2000. Notwithstanding
the respondent's wife lack of work history or experience, the respondent and his wife
have decided to have her remain in the United States with the two children. The
respondent acknowledges that his wife would have to work in order to help support the
two children. The court can see that this is going to cause significant hardship on a
financiaJ level to the two children as it is unclear what type of employment the wife will
be able to obtain. Nevertheless, the court finds that the type of financial hardship that
would be experienced by the two United States citizen children does not rise to the level
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The court will go on to complete the analysis notwithstanding that the

of exceptional or extremely unusual hardship. To the contrary, the court finds that this
children when their alien father who

is the princip le breadwi nner leaves the United

States leaving them behind with a parent who has no employment history. In other
words the two qualifying relatives are similarly situated to many other children in the
same circumstances. As such the type of financial hardship that they would experience
must be described as ordinary. The court also recognizes that there will be emotional
hardship to these two children as they have a close relationship with their father. The
court however cannot find that the emotional hardship rises to the requisite level of
exceptional or extremely unusual hardship. To the contrary, the type of emotional
hardship is ordinary. It is the same type of emotional hardship that might be
experienced by a ny sim ilarly situated ch ildren when their father leaves the country
leaving them behind with their mother.
The emotional impact from the separation from their father will be
ameliorated to some degree by the fact that they are at least remaining in the United
States with their mother.
The respondent's wife and Gladys are in good health. The only medical
situation in this case is the fact that Estella has mild eczema. The court's read and
considered the medical documentation in the record as well as the doctor's letters found
at Exhibit Q. The court cannot find the existence of mild eczema is a compelling
medical issue. In any event, Estella's medical care wil l continue to be paid for by
Medicaid in the absence of her father. Thus, Estella will continue to get the medical
care and attention she needs in order to treat her eczema condition.
The court would also observe that while there will be this fina ncial
hardship to the children it may be somewhat ameliorated by the fact that these children
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is the same type of hardshi p that would be experienced by any United States citizen

,s

"

currently receive more than $300 in food stamps. The court wou ld observe that this a
probability, the level of food stamps received by the child ren will increase significantly.
Thus the financial hardship will be somewhat reduced by the increase in any food stam p
benefits that the chi ld ren ultimately receive once their father's income is not figured into
the calculation.

tiff'"
The court also cannot find that the respondent will be whollyfe unable to
A
find work in Guatemala. The respondent is 39 years o ld, he is in good health ; there is
nothing in the record that would establish that the respondent would be wholly unable to
find employment in Guatemala.
There

may

e AS'E
be several factors in this case that will - the

respondent's transition to Guatemala . Both he and his wife have significant family
members i n Guatemala wh ich may assist him in his transition to his native country.
Specifically he has h is parents and three siblings. H is wife who is also from the same
area has her parents and seven siblings perhaps these extensive family members can
1
help out the respondent in making his transition to Guatemala.
The respondent also some limited assets here in the United States. The
respondent has three automobiles which he values at $5,000. The l iquidation of some
of those cars may provide some immediate cash for the respondent's wife and two
children as he departs the United States.
The court has carefully read all the evidence of record both individually
and cumulatively on the exception of extremely unusual hardship issue. Upon
examination, the court concludes that the respondent has failed to meet his burden of
proof on this issue. The court notes one final observation : The respondent came to the
United States as an adult. He was over 25 years old when he came here. This is not a
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means tested program. Thus in the absence of the father's significant income, in all

case where the respondent bore no responsibility for his choice to enter the United
collected property and equities in this country knowing full well that he may someday be
required to leave the United St.ates, that day has now arrived .
In sum , the court finds it unlikely that the respondent's two children will
suffer exceptional and extremely unusual hardship in the future as a result of the
respondent's removal from the United States to Guatemala. Cf, Turkson v. Holder! 667
F.3d 523, 530 (4th Cir. 201 2) upholding trial court's finding of fact as to likelihood a
future event would occur.
The court has found that the respondent is ineligible for cancellation of
removal because he provided false testimony before the court. Accordingly the court
must also find that the respondent lacks the requisite good moral character so as to be
eligible for voluntary departure. Thus, the court has no alternative but to order the
respondent removed from the United States.
ORDERS
It is hereby ordered that the respondent's application for Cf,mcellation of
removal is denled for lack of good moral character and for inability to establish the
requisite exceptional and extremely unusual hardship. It is further ordered that the
respondent is ordered removed from the United States to Guatemala on the charge
contained in the Notice to Appear.

BARRY J. PETI
Immigration Jud

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States illegally contrast Matter of O-J-0-, 21 l&N Dec. 381 (BIA 1 966). The respondent